Smith v. Ice Delivery Co
| Decision Date | 15 February 1911 |
| Docket Number | (No. 2,527.) |
| Citation | 70 S.E. 195,8 Ga.App. 767 |
| Parties | SMITH. v. ICE DELIVERY CO. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
1. Pleading (§ 199*) — Exceptions—Waiver of Objection.
The judge did not err in overruling the demurrer to the plaintiff's petition. All exceptions to petitions and pleas should be taken at the first term. If a plaintiff's petition is not sufficiently full to enable the defendant to plead thereto, the defendant must make his objections at the first term, or he will be held to have waived any objection which can be cured by amendment,
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 464; Dec. Dig. § 199.*]
2. Bills and Notes (§ 41*)—Chattel Mortgages (§ 43*) — Acknowledgment of Indebtedness—Reservation of Title—Due-bill.
The petition, even if it needed amendment, set forth a cause of action. The admission ofindebtedness in a fixed and definite amount implied a promise to pay the amount admitted to be due. That part of the instrument upon which the petition was based was properly construed as a duebill. and there is no more reason why a reservation of title may not be included in a duebill than in a promissory note which is to be paid at a fixed date in the future, nor any reason why a duebill may not include, «to secure it, a bill of sale of personal chattels.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 61; Dec. Dig. § 41;2-* Chattel Mortgages, Cent. Dig. § 83; Dec. Dig. § 43.*]
3. Chattel Moetgages (§ 277*) — Action — Pleading.
In a suit to recover the amount of a due-bill, and asking a special lien upon the property described in a bill of sale executed to secure its payment, it is not necessary to set forth any violation of the contract other than the refusal of the debtor to pay the debt he has acknowledged, and which he, for that reason, must be presumed to have obligated himself to pay immediately or upon demand.
[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 564-566; Dec. Dig. § 277.*]
4. Pleading (§ 193*)—Demurrer—Consideration.
The lack, or failure, of consideration of a written evidence of indebtedness is a matter of defense, and it cannot be asserted by demurrer that any written acknowledgment of indebtedness is without consideration or based upon an illegal consideration, unless this fact is apparent from the face of the writing itself, or unless lack of consideration is deduci-ble from the writing when it is considered in connection with the petition to whch it is attached or in which it is incorporated.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 441; Dec. Dig. § 193.*]
Error from City Court of Savannah; Davis Freeman, Judge.
Action by the Ice Delivery Company against Julian Smith. From a judgment for plaintiff, defendant brings error. Affirmed.
Travis & Travis, for plaintiff in error.
Saussy & Saussy, for defendant in error.
The Ice Delivery Company filed a petition against Julian Smith, alleging that the defendant was indebted to it in the sum of $694.65, with interest, "as is shown by an instrument, being an acknowledgment of said debt and a bill of sale to secure said indebtedness, executed by the said defendant, * * * under which instrument title to the following property was conveyed to the Savannah Ice Delivery Company, as security for said indebtedness, " a copy of the instrument being attached to the petition. It was alleged that all rights of the Savannah lee Delivery Company had been legally and duly transferred to the petitioner, and that payment has been demanded and refused, whereupon the petitioner prayed judgment for $694.65, and that the judgment be declared a special lien upon the property described in said bill of sale. The writing, a copy of which was attached to the petition, is as fol lows:
The defendant demurred to the plaintiff's petition generally upon the ground that it sets forth no cause of action, because no facts are stated to authorize the judgment prayed for, nor any facts authorizing any judgment, because no violation of the contract is set forth, nor any injury to the property of the plaintiff, and because it is not alleged how the indebtedness of the defendant arose, whether there was any consideration therefor, or whether the same was upon open account, note, bill, bond, or for money had and received, or for what said indebtedness is claimed. The court overruled the demurrer, and the defendant excepts to this ruling. In our view of the case there can be no question that the court ruled correctly. In the first place the demurrer came too late. The plaintiff's petition was filed March 29, 1909, and the demurrer was not filed until February 17, 1910. So far, then, as the demurrer was addressed to structural and not substantial...
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